2012-NOV: Accelerating steps toward
same-sex
marriage (SSM) etc.

We use the acronym "SSM" throughout this section to represent "same-sex marriage"
We use the acronym "LGBT" to refer to lesbians, gays, bisexuals, transgender persons
and transsexuals. The acronym "LGB" refers to lesbians, gays, and bisexuals.

See also the previous essay describing events during the previous month: 2012-OCT

Status of Prop. 8 lawsuit in California:

2011-FEB-23: The Obama administration announced on that it would no longer defend the constitutionality of the federal Defense of Marriage Act (DOMA) in court. This is the law that prevents the federal government from recognizing same-sex couples who have been legally married in a U.S. state. The government based this decision on an ruling by a Massachusetts District Court that found multiple reasons why the federal DOMA legislation violates the U.S. Constitution and is thus invalid. A series of additional rulings by federal District Courts and Circuit Courts of Appeal have concluded that at least major parts of DOMA are unconstitutional. The U.S. Supreme Court has been asked to rule on DOMA.

2012-NOV-01:CA: Proposition 8: The American Foundation for Equal Rights (AFER) is sponsoring Perry v. Brown -- a constitutional challenge to Proposition 8 in California. Prop. 8 was the citizen initiative that overturned marriage equality in California in 2008-NOV by a close vote. AFER won at the District Court level and later at the U.S. 9th Circuit Court of Appeals. They are now appealing the case to the U.S. Supreme Court (SCOTUS).

2012-NOV-20: The nine justices at SCOTUS were scheduled to discuss this case as well as several challenges to the federal Defense of Marriage Act. However, it has been postponed until NOV-30. Sometime during the following week, they are expected to announce whether they will hear the Prop. 8 case or deny certiorari (refuse to hear it).

There are a three possible future scenarios:

If the court hears the case, their ruling is expected by mid-2013:

If they confirm the decisions of the lower courts, then the Circuit Court's decision will stand and Prop. 8 will be be no longer valid. Later, same-sex couples would be able to resume marrying in California. 1

If the court overturns the lower court ruling, then Prop. 8 will stand and same-sex couples would still not be able to marry. However, a new referendum would probably be initiated to have the public vote to repeal Prop 8 and make marriage available. By mid-2013 support for SSM in the state might well reach 60%, so the new Proposition would almost certainly pass, and SSMs would be able to resume.

If the court denies certiorari, then the Circuit Court decision will stand and same-sex couples would later be able to marry in the state.

2012-NOV-01: USA: Reliability of polls concerning SSM is dropping:

To date, 16 recent national public opinion polls confirm that most American adults believe that loving, committed same-sex couples should be allowed to marry. 1

However, an interesting phenomenon has surfaced. Large numbers of Americans are becoming aware that opposition to marriage equality is becoming widely regarded as bigotry. It is being classed as a form of homophobia which many people place in the same category as racism, sexism, transphobia, xenophobia, etc. As a result, when adults are polled, many no longer tell the truth. They say that they are in favor of SSM in order to avoid being thought of poorly by the pollster. But, when allowed to vote for or against SSM in the privacy of the voting booth, they would vote to preserve marriage inequality. Thus, opinion polls are becoming less reliable on this topic.

Sociologists refer to this phenomenon as the "Halo Effect:" People tend to over-report socially desirable behaviors such as voting at elections, attending church, donating to charity, etc. Perhaps the best known manifestation of the Halo Effect involves church attendance. In U.S. national polls, about 40% of adults claim to attend religious services regularly once a week. However, when people are actually counted at churches, synagogues, mosques, etc. the data shows that about half of them are fibbing. The actual attendance is about 20%. In Canada, the numbers are about half of the values found in the U.S.

Thus, in order to pass a referendum on marriage equality, one really needs a sizeable percentage point margin in favor of equality as election day approaches: About 5 percentage points may be needed to overcome the influence of fear-based anti-SSM advertising by religious conservatives that depresses support for SSM temporarily. Another 5 percentage points may be needed to overcome inaccuracy in the polling caused by the Halo Effect. Since the margin in favor of marriage equality is increasing at about 2 to 4 percentage points a year, this may insert many years -- or even decades -- delay before a SSM referendum has a chance of passing in some states.

Sponsored link:

2012-NOV-07: A majority of voters in three states -- Maine, Maryland, and Washington -- legalized SSM on Election day.

It was a clean sweep! If the current partial vote count trends hold, this will increase the number of U.S. political jurisdictions where loving, committed same-sex couples can marry to 10. This includes the District of Columbia plus nine states.

This is a remarkable development! Starting in 1998, there have been 30 to 33 previous state referendums held concerning SSM (claims from different sources differ). Most successfully amended a state constitution with a "Defense of Marriage" clause" (DOMA) that restricted marriage to consensual unions between one woman and one man. All but one of these amendments had been successful in writing discrimination into a state constitution. Now, in a single day, voters defeated a discriminatory constitutional amendment and added three more states to the list of jurisdictions where same-sex couples are or shortly will be able to marry.

During previous years, SSM was legalized by some state courts. The first was Massachusetts. The courts were criticized by social and religious conservatives as being staffed by "activist judges" who usurped the role of legislatures and improperly "legislated from the bench." Later, Vermont became the first state whose legislature took the initiative to legalize SSM without being forced by a court. Such legislatures were criticized for taking a radical step that was out of tune with public opinion. Now, three states legalized SSM by a public vote in one day. It will be interesting to see what form of criticism will come from conservative groups.

Public attitudes on marriage have changed as various excluded minorities have been allowed to marry:

At the end of the civil war when African Americans were allowed to marry.

During the early 20th century when deaf couples were allowed to marry in all states.

During the latter half of the 20th century, when the public increasingly accepted interracial marriage, and when the U.S. Supreme Court finally ruled in 1967 that all miscegenation laws are unconstitutional.

The Washington Post newspaper published the following graph on 2011-MAR showing national polling data from 2003 to 2011. Their most recent data points show that SSM was supported by 53% of American adults, compared with 44% opposed -- a 9 percentage point margin:

Startling results from the referendums on election day 2012 are in Part 2

References used:

These information sources were used to prepare & update the above essay. The hyperlinks are not necessarily still active today.